Santos Carlos Martinez-Sanchez v. Immigration and Naturalization Service , 794 F.2d 1396 ( 1986 )

CANBY, Circuit Judge:

Santos Carlos Martinez-Sanchez, a native and citizen of El Salvador, seeks review of a Board of Immigration Appeals (BIA) decision denying his application for political asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h). He contends that the BIA applied the wrong standard of proof when it evaluated his asylum claim. He also argues that the BIA’s credibility determination, which led to denial of his request for withholding of deportation, was not supported by substantial evidence. We grant the petition for review.

I. BACKGROUND

Martinez-Sanchez is a thirty-year-old married man who fled El Salvador in late 1982 because of a claimed fear of leftist guerrillas in his home country. After spending several months in Mexico, he entered the United States on May 1, 1983, evading inspection at the Mexican border. He was apprehended, and deportation proceedings against him began shortly thereafter.

Petitioner testified that he feared returning to El Salvador because of his membership in and collaboration with a right-wing paramilitary group known as Orden. He revealed that his father, a member of the Salvadoran National Police, was a supervisor of Orden and that his family’s ties to the Salvadoran government and Orden had led to threats against his life.

At his deportation proceedings, petitioner conceded deportability and filed timely petitions for asylum and withholding of deportation. These requests were denied, and the BIA affirmed.

II. STANDARD OF PROOF

To qualify for withholding of deportation under 8 U.S.C. § 1253(h), an alien must demonstrate a “clear probability” that his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 2492, 81 L.Ed.2d 321 (1984); Espinoza-Martinez v. INS, 754 F.2d 1536, 1539 (9th Cir.1985). “Clear probability” is a relatively high standard; the evidence must show that it is “more likely than not that the alien would be persecuted in the country to which he was being deported.” Stevic, 467 U.S. at 425, 104 S.Ct. at 2498.

An alien who is unable to demonstrate a “clear probability” of threat to life or freedom may still be eligible for a discretionary grant of asylum under 8 U.S.C. § 1158(a) if he can show that he is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). That section defines “refugee” as any person outside his country of nationality or habitual residence who is unwilling to return “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” We have held that the well-founded fear standard for asylum is more generous than the clear probability showing required for withholding of deportation. See, e.g., Cardoza-Fonseca v. INS, 767 F.2d 1448, 1451 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281-83 (9th Cir.1984); see also Stevic, 467 U.S. at 430, 104 S.Ct. at 2501 (holding “well-founded fear” standard applicable to asylum cases but declining to define its scope).

This case was decided by the BIA before we clarified the applicable standards in our Bolanos-Hernandez decision. It also predated the BIA’s decision in Matter of Acosta, Interim Dec. No. 2986, slip op. at 25 (BIA March 1, 1985), where the Board reaffirmed its position that “well-founded fear” and “clear probability” are not meaningfully different, Bolanos-Hernandez and other authority notwithstanding.

In reviewing pr^.-Bolanos-Hemandez decisions in which there is doubt whether the BIA applied the proper standard of well-founded fear, we have adopted a case-by-case approach in which we examine the “analysis actually applied by the BIA” in evaluating the asylum claim in question. Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986); see also Chatila v. INS, 770 F.2d 786, 790 (9th Cir.1985); Cardoza-Fonseca, 767 F.2d at 1454. Thus, the “utterance of certain magical words by the BIA is not the focus of our inquiry.” Vides-Vides, 783 F.2d at 1463. Instead, we look for evidence in the record that the BIA recognized that different standards “could be relevant in adjudicating claims of persecution under the two separate statutes,” even if the Board refuses to acquiesce in our view that the standards are distinct.¹ Id. Applying this approach, we conclude that the BIA failed to apply the appropriate standard to petitioner’s asylum claim.

In this case, the BIA made it abundantly clear that it did not differentiate between the standards applicable to asylum and withholding of deportation. It first stated:

The law is well-settled that an applicant for asylum or withholding of deportation bears the burden of proving that he has a well-founded fear of persecution if returned to his native land.

This formulation lumps the two forms of relief together under the asylum standard. Equating the two standards in this manner would be harmless to the petitioner, for the asylum standard is the more lenient. In its next two sentences elaborating on its joint standard, however, the BIA applied stricter requirements to both types of claims:

This language refers to more than the alien’s subjective state of mind. See Kashani v. INS, 547 F.2d 376 (7 Cir.1977). He must establish that his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion.

(Emphasis added). This language, if softened by reducing the required showing to one of “clear probability,” would state the proper standard for withholding of deportation. It is clearly incorrect as a standard for asylum, which it also purports to be.

The BIA then applied its single standard to petitioner’s case and denied him all relief. It next added what seems to be an insurance clause for the standard of proof:

Our conclusion is the same regardless of whether his claim is assessed in terms of a “clear probability,” “good reason,” or “realistic likelihood” standard of persecution. See Rejaie v. INS, 691 F.2d 139 (3 Cir.1982); Stevic v. Sava, 678 F.2d 401 (2 Cir.1982); Matter of Martinez-Romero, [18 I & N Dec. 72 (BIA 1981), aff'd, 692 F.2d 595 (9th Cir.1982)].

This statement does nothing to change our conclusion that an improper standard was applied. The BIA’s citation of authorities removes any doubt. In the context of this case, the BIA seems to have said that it did not matter which standard was applied because they all amounted to the same thing.² The BIA’s treatment of the record facts reflects the same approach.

The BIA decision in this case is, then, in marked contrast to several other BIA determinations that we have upheld recently. In those cases, the BIA opinions either expressly recognized the possibility of a more lenient standard, or the context of the opinions failed to show that the two standards were being improperly equated.

For example, in Lopez v. INS, 775 F.2d 1015 (9th Cir.1985), we affirmed the BIA’s denial of asylum relief. There, the BIA had stated that its view of the merits of the alien’s claim was the same “ ‘whether we apply the standard of ‘clear probability’ or a lesser standard, such as ‘good reason’----’” Id. at 1016 (quoting BIA decision) (emphasis added by court). Thus, there was a clear indication from the BIA of a differentiation between the standards applicable to the two forms of relief sought.

Similarly in Chatila v. INS, 770 F.2d 786 (9th Cir.1985), we affirmed the denial of relief despite the immigration judge’s clear error in reviewing Chatila’s asylum application under the “clear probability” standard. We determined that we could affirm because the BIA had rendered the IJ’s error harmless when it performed its own analysis and determined that the alien had “ ‘failed to sustain his burden of establishing á well-founded fear that he will be singled out for persecution____’” Id. at 790 (quoting BIA decision). True, we also referred to the fact that the BIA had said that its conclusion was “ ‘the same whether we apply a standard of “clear probability,” “good reason,” or “realistic likelihood.” ’ ” Id. (quoting BIA decision). But we clearly stated in addition that the BIA had recognized the difference between the “clear probability” and “well-founded fear” standards, and had performed a “more discriminating review” than the IJ. Id.

For the same reason, we find the case now before us distinguishable from Vides-Vides and our recent decision in Quintanilla-Ticas v. INS, 783 F.2d 955 (9th Cir.1986). It is true that in both of those cases, too, the BIA denial of relief included a statement that the Board’s decision would be the same whether the claim is “ ‘assessed in terms of demonstrating a “clear probability,” a “realistic likelihood,” a “reasonable possibility” or a “good reason to fear” persecution.’ ” Vides-Vides, 783 F.2d at 1468 (quoting BIA decision); Quintanilla-Ticas, 783 F.2d at 957 (quoting BIA decision). Reviews of the entire record, however, indicated that the BIA had recognized the distinction between the two applicable standards. Affirmance was therefore appropriate where substantial evidence supported the BIA’s conclusion. Vides-Vides, 783 F.2d at 1468 (BIA decision, read as whole, reflects recognition of distinctive standards); Quintanilla-Ticas, 783 F.2d at 956 (BIA “expressly recognized” different standards).

Finally, in Rebollo-Jovel v. INS, 794 F.2d 441 (9th Cir.1986), this court reviewed our recent cases and held that “we should take the Board at its word when it states that it believes a claim should fail under any standard it might apply, unless it is clear to us, from their context in each case, that the Board’s words mean something else. ” Id. at 447 (emphasis added). The Board’s decision and the record furnished no clear indication that the Board had applied the wrong standard. Id. at 446.

By contrast, the record and the BIA’s opinion in this case, which twice misstates the proper standard for asylum, and which relies on authority equating the standards of asylum and withholding of deportation, clearly indicate that the BIA employed the wrong standard for Martinez-Sanchez’s asylum claim. We emphasize that the differences between the two standards are far more than semantic; some applicants who are unable to establish a clear probability of threat to life or freedom will nevertheless be able to demonstrate a well-founded fear of persecution. They should be given a chance to do so.

We will not adjudicate the case de novo. The BIA must be given the opportunity to evaluate petitioner’s asylum claim under the proper legal standard. Cardoza-Fonseca, 767 F.2d at 1453-55; see also Maroufi v. INS, 772 F.2d 597, 601 (9th Cir.1985) (motion to reopen). We accordingly remand the case to the Board for reconsideration of petitioner’s asylum claim in light of the standard of well-founded fear adopted by this court. See Cardoza-Fonseca, 767 F.2d at 1452-53.

III. CREDIBILITY

Remaining before us is the BIA determination that petitioner was ineligible for withholding of deportation under 8 U.S.C. § 1253(h). The BIA based its determination in part on the IJ's finding that petitioner was not a credible witness. We must defer to an IJ’s credibility determinations that are fairly supported by the record. Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1984). The record here, however, does not support the finding.

In his oral opinion, the IJ stated in passing that Martinez-Sanchez’s credibility had not been established, but he did not indicate why. The BIA stated that the IJ had determined that petitioner was not a credible witness “on the basis of his demeanor as well as the inconsistencies in the record.” The IJ mentioned neither of these factors.

The record indicates nothing about petitioner’s demeanor. Moreover, the few inconsistencies we can find in the record are minor indeed. There was some confusion about precisely when Martinez-Sanchez had joined Orden. In addition, petitioner’s form 1-589 listed two children although he testified that he had four children. Except for these two points, the record appears to us consistent. Such “trivial errors” do not constitute “a valid ground upon which to base a finding that an asylum applicant is not credible.” Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986). The record furnishes no basis for determining what the BIA’s decision would have been absent the credibility determination. Accordingly, we reverse the Board’s decision and remand for a determination of petitioner’s claim for withholding of deportation without reliance upon the adverse credibility determination.

IV. CONCLUSION

Because the BIA failed to apply the correct standard of proof when it evaluated petitioner’s claim for asylum, and because no substantial evidence supported the BIA’s finding that petitioner lacked credibility, we grant the petition for review, reverse the decision of the BIA, and remand the case to the BIA for reconsideration of both of petitioner’s claims.

PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED.

1 . We emphasize that this case-by-case approach to reviewing BIA asylum determinations is only clearly applicable in cases decided administratively before Bolanos-Hernandez. We need not today decide the appropriate standard for reviewing later BIA decisions. In Vides-Vides, however, we said that in these later cases we may require a more explicit statement from the BIA that, even were it to apply a more generous standard of the sort we require, it would still deny the asylum petition. See Vides-Vides, 783 F.2d at 1468 n. 3.

2 . In Rejaie, the Third Circuit held squarely that the clear probability standard is required for both withholding and asylum relief. See 691 F.2d at 146. The Stevie court also held that the two standards were identical but that the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102, made the standard more generous than the old clear probability standard. See 678 F.2d at 407-09. The Supreme Court reversed, holding that the clear probability standard continued to apply to requests for withholding. INS v. Stevic, 467 U.S. at 425, 104 S.Ct. at 2498. The Court specifically reserved the question of whether the standards were the same although it assumed for purposes of decision that well-founded fear was more generous. Id. Finally, in Martinez-Romero, the BIA stated that to qualify for either form of relief, an applicant must demonstrate a clear probability of persecution. See 18 I & N Dec. at 78; see also id at 77 n. 5 (noting that the five grounds upon which applications for asylum or withholding relief are based are identical). Although we affirmed the BIA decision, we did so on other grounds. The case was before the BIA on a motion to reopen. Our two-paragraph per curiam noted only that in order to avoid deportation, an alien must show some special circumstances beyond conditions suffe" -d by the general population of the home country. See Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982).